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MEMBER DIARY

Supreme Court: The Next Term Thus Far

Thus far, the Supreme Court has granted 11 cases for their next term and held over a case from this term for a total of 12 cases. A quick review of these granted/held over cases is in order.

In Arkansas Game & Fish Commission v. United States, the state of Arkansas is claiming that a decision to periodically release water from a dam upstream which caused flooding of state land downstream is a “taking” to which they are entitled compensation. The land in question is a state wildlife area that also produced timber. The flooding created essentially rendered that area devoid of timber and use by hunters and fishermen thus costing the state revenue. The government argues that it cannot be a compensable taking unless the flooding is permanent. The District Court found in the state’s favor, but the Circuit Court overruled that decision siding with the Army Corps of Engineers. This is an important case in that it addresses a subtlety of the Takings Clause. Obviously, the “taking” is not permanent, but it represents a de facto taking since the flooding rendered the area unusable as far as timber harvest was concerned.

In Fisher v. University of Texas at Austin, the Court will address indirectly an affirmative action program in education. Texas enacted a law that granted automatic admission to the state college system of the top 10% of high school graduates from any high school. In 2003, the Court ruled (in Grutter v. Bollinger) that colleges can resort to the limited use of race in admission policies. Prior to that decision, Texas never considered race in filling the additional openings available in the university system. They hoped to achieve greater student diversity in doing so. In effect, Abigail Fisher is arguing that the Grutter decision be overruled since the motivation behind the change in policy runs counter to the type of “racial balancing” Grutter warned against. The government is trying to nuance the case declaring it moot since Fisher has since graduated from LSU and has no case against the University. Views of candidates for President on this case and affirmative action overall may play a role in the campaign.

There are two companion cases out of Florida involving the 4th Amendment. In Florida v. Harris, the Court is asked whether a alert by well-trained and certified narcotics detection dog is or is not sufficient to create probable cause for the search of a vehicle. Meanwhile, in Florida v. Jardines, the Court is asked if a dog sniff at a suspected “grow house” violates the 4th Amendment’s requirement of probable cause. At first, they seem alike, but on closer examination they address different stages of the use of the trained dogs. With the vehicle search, there was apparently no probable cause absent the sniff by the dog while in the home case, the officers first suspected, for whatever reason, that the home was being used to grow contraband. In the latter case, it would appear that there was probable cause in the first instance in which case a warrant should have been sought. In the vehicle case, there existed no probable cause to warrant the sniff by the dog in the first place unless one subscribes to the theory that any traffic stop constitutes probable cause.

Kirstaeng v. John Wiley and Sons addresses the burgeoning e-commerce sector. Wiley is a publisher of college text books who sells those books overseas at a discount. Kirstaeng, looking to make extra money for his college expenses, asked relatives overseas to send him copies of text books so that he can resell them for a personal profit, but at a cost below those through normal retail outlets. One can see the ramifications of this case. Imagine anyone who sells a book through E-Bay, Craigslist or other online service. Are they in violation of current copyright law? In fact. Kirstaeng argues that the publisher already received compensation in the first sale instance overseas. Granted, this was a calculated move by Kirstaeng to make money off of copyrighted material, but a decision could affect the average Joe wishing to make a few bucks while cleaning out their attic.

Two cases will address prisoner rights (Ryan v. Gonzalez and Tibbals v. Carter). In federal proceedings, one is entitled to effective legal counsel. In these cases, the Court confronts the issue of prisoners who are incompetent to assist that counsel. The first issue is whether a federal proceeding can be indefinitely stayed if the prisoner is deemed incompetent to assist counsel. The second case asks whether federal capital prisoners even “possess a right to competence” in the first place. Personally, the whole idea seems to create a legal and constitutional black hole where any federal or capital prisoner could indefinitely delay a punishment or sentence simply by claiming or feigning incompetence. The Court needs to end this practice.

In Moncrieff v. Holder, the Court will decide whether the possession of a small amount of marijuana rises to the level of an aggravated felony and thus trigger the automatic deportation of a foreigner. With changing attitudes and relaxation of marijuana possession laws, there is a disconnect between punishments and those attitudes. Obviously, the federal definition of a “felony” would be controlling here with respect to marijuana possession and the amounts involved. Kloeckner v. Solis addresses federal court jurisdiction in mixed cases. In this particular case, the termination was disputed along with a accusation of unlawful discrimination. Specifically, if the termination was deemed lawful by a District Court, can the discrimination claim proceed in federal court?

In Johnson v. Williams, the Court will decide whether the retention of a biased juror-one who would apparently be favorable to the defendant- should be permitted under the 6th Amendment. This may call into question the practice of preemptory juror challenges. In effect, the Court is being asked if defendants have a right to inclusion of sympathetic jurors. Meanwhile, in US v. Bormes, the federal government is claiming sovereign immunity against suits for violations of credit card transaction privacy violations. Here, Bormes paid a filing fee with the government (he is a lawyer) by credit card and was advised that the credit card had expired. He is claiming that is a violation of applicable credit card transaction privacy legislation. The Court of Appeals ruled that immunity was waived by what is known as “The Little Tucker Act.”

Lozman v. Riviera Beach, Florida addresses whether a vessel permanently moored qualifies as a “vessel” in the first place and subject to federal maritime jurisdiction. This addresses whether house boats that never actually leave a dock and that receive water and sewer services are boats or homes. This then leads to the question of whether a local entity can assess property taxes on that “structure.” The plaintiff here is arguing that since the “boat” sits in navigable water, it is a “vessel” and not subject to local taxation.

The final case- Kiobel v. Royal Dutch Petroleum- was heard this term, but will be reargued next term. This questions whether foreign corporations are immune from tort liability for alleged complicity in or actually carrying out violations of international law like torture and genocide if those violations occur outside the United States. The international ramifications of this case are enormous. This case involves a Nigerian exile whose family members were forcibly removed by the government there at the behest of the oil company in search of oil. The government used torture, kidnappings and murder to achieve those ends. Obviously, a ruling in favor of Kiobel would open US courthouse doors to litigation by foreign nationals claiming violations of international law for acts that occurred in their native countries against persons or corporations. They obviously cannot sue the government of those native countries under the Alien Tort statutes, but the question is whether private parties- individuals or corporations- can be sued if those individuals or corporations played a role in the alleged violations.

In a previous entry, I surmised that regarding the gay marriage controversy, the DOMA case out of the 2nd Circuit seemed like a more likely vehicle for Supreme Court review (if they decide to take on the issue at all) rather than the Proposition 8 case out of the 9th Circuit. Subsequent actions would appear to prove my analysis correct. The full Ninth Circuit has decided to hear the case and placed the challenge on their docket. However, it is not slated for argument until at least September of this year. Assuming at least 90 days before a ruling and opinion, that would make an appeal to the Supreme Court no earlier than February 2013 which may be too late to add on the calendar. They could take the case, but slate it for the October 2013 term with no decision until 2014. However, the DOMA case appears to have run out of lower appeals court challenges and seems headed for the Supreme Court. It could reach the Court during the summer recess and end up on the docket for the term that begins in October 2012.